President, Relying on Signing Statement, Knowingly Violates Law Requiring Notice To Congress Before Transferring Prisoners from Guantanamo

June 1st, 2014

If this WaPo report is true, this is a very big deal. The President signed a law stating that he would give Congress 30 days notice before transferring any prisoners from Guantanamo. POTUS only gave notice after transferring away five Afghan Detainees after the deal was made. He knew he violated the law, but relied on a signing statement saying that part of the law was unconstitutional!

Lawmakers were not notified of the Guantanamo detainees’ transfer until after it occurred.

The law requires the defense secretary to notify relevant congressional committees at least 30 days before making any transfers of prisoners, to explain the reason and to provide assurances that those released would not be in a position to reengage in activities that could threaten the United States or its interests.

Before the current law was enacted at the end of last year, the conditions were even more stringent. However, the administration and some Democrats had pressed for them to be loosened, in part to give them more flexibility to negotiate for Bergdahl’s release.

A senior administration official, agreeing to speak on the condition of anonymity to explain the timing of the congressional notification, acknowledged that the law was not followed. When he signed the law last year, Obama issued a signing statement contending that the notification requirement was an unconstitutional infringement on his powers as commander in chief and that he therefore could override it.

“Due to a near-term opportunity to save Sergeant Bergdahl’s life, we moved as quickly as possible,” the official said. “The administration determined that given these unique and exigent circumstances, such a transfer should go forward notwithstanding the notice requirement.”

I’d love to see the legal memo on that one.

I will wait patiently for the ABA to issue a statement condemning the President for not only issuing a signing statement, but ignoring the rule of law for “exigent circumstances.”

Update: Charlie Savage wrote about the signing statement in January 2013. Here is the key section:

Section 1027 renews the bar against using appropriated funds for fiscal year 2012 to transfer Guantanamo detainees into the United States for any purpose. I continue to oppose this provision, which substitutes the Congress’s blanket political determination for careful and fact-based determinations, made by counterterrorism and law enforcement professionals, of when and where to prosecute Guantanamo detainees. For decades, Republican and Democratic administrations have successfully prosecuted hundreds of terrorists in Federal court. Those prosecutions are a legitimate, effective, and powerful tool in our efforts to protect the Nation, and in certain cases may be the only legally available process for trying detainees. Removing that tool from the executive branch undermines our national security. Moreover, this provision would, under certain circumstances, violate constitutional separation of powers principles.

The rationale of the signing statement concerns transferring the detainees to the United States for prosecution. Here the detainees were transferred to Afghanistan as a bargaining chip for an American POW. Yeah.

At the time, Savage wrote:

Saying that he continued to believe that closing the Guantánamo prison was in the country’s fiscal and national security interests, Mr. Obama made a similar challenge to three sections that limit his ability to transfer detainees from Guantánamo, either into the United States for prosecution before a civilian court or for continued detention at another prison, or to the custody of another nation.

It was not clear, however, whether Mr. Obama intended to follow through, or whether he was just saber-rattling as a matter of principle. He made a similar challenge a year ago to the Guantánamo transfer restrictions in the 2012 version of the National Defense Authorization Act, but — against the backdrop of the presidential election campaign — he did not invoke the authority he claimed.

Several officials said that it was not certain, even from inside the government, what Mr. Obama’s intentions were. While the signing statement fell short of a veto, they said its language appeared intended to preserve some flexibility for the president to make a decision later about whether to make a new push to close the Guantánamo prison amid competing policy priorities.

Well yeah, now he has invoked that authority.

Here is section 1027 of the Act:

1027.Prohibition on the use of funds for the transfer or release of individuals detained at United States Naval Station, Guantanamo Bay, Cuba
None of the funds authorized to be appropriated by this Act for fiscal year 2013 may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions of Khalid Sheikh Mohammed or any other detainee who—

(1)is not a United States citizen or a member of the Armed Forces of the United States; and
(2)is or was held on or after January 20, 2009, at United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.

Still waiting for the ABA to comment on this abuse of the rule of law.

The American Bar Association has called upon presidents to stop using signing statements, calling the practice “contrary to the rule of law and our constitutional system of separation of powers.” A year ago, the group sent a letter to Mr. Obama restating its objection to the practice and urging him to instead veto bills if he thinks sections are unconstitutional.

As a presidential candidate, Mr. Obama sharply criticized Mr. Bush’s use of the device as an overreach. Once in office, however, he said that he would use it only to invoke mainstream and widely accepted theories of the constitutional power of the president.

Update 2: Flashback to March 2009 when the President first acknowledged that he would in fact use signing statements, but only if Eric Holder said he could rely on them.

Calling into question the legitimacy of all the signing statements that former President George W. Bush used to challenge new laws, President Obama ordered executive officials on Monday to consult with Attorney General Eric H. Holder Jr. before relying on any of them to bypass a statute.

But Mr. Obama also signaled that he intended to use signing statements himself if Congress sent him legislation with provisions he decided were unconstitutional. He promised to take a modest approach when using the statements, legal documents issued by a president the day he signs bills into law that instruct executive officials how to put the statutes into effect. But Mr. Obama said there was a role for the practice if used appropriately.

“In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded,” Mr. Obama wrote in a memorandum to the heads of all departments and agencies in the executive branch.

In his directive, Mr. Obama said any signing statement issued before his presidency should be viewed with doubt, placing an asterisk beside all of those issued by Mr. Bush and other former presidents.

“To ensure that all signing statements previously issued are followed only when consistent with these principles,” he wrote, “executive branch departments and agencies are directed to seek the advice of the attorney general before relying on signing statements issued prior to the date of this memorandum as the basis for disregarding, or otherwise refusing to comply with, any provision of a statute.”

So there is almost certainly a DOJ memo on this one. Let’s see it.

Update 3: Marty Lederman weighs in, without endorsing the validity of this action:

From a legal perspective, one question is whether the Secretary of Defense complied with the 30-day notice/certification requirement of Section 1035 of the 2014 NDAA (and if not, on what grounds).  Secretary Hagel’s statement suggests that he did comply with thesubstantive requirements of Section 1035, but that he notified Congress today, not 30 days ago.  It’s difficult to imagine that Congress would have intended to insist upon such a 30-day delay if the legislators had actually contemplated a time-sensitive prisoner-exchange negotiation of this sort; but the statute does not on its face address such a rare (and likely unanticipated) case.  Note that the President wrote this in his signing statement:  “Section 1035 does not . . . eliminate all of the unwarranted limitations on foreign transfers and, in certain circumstances, would violate constitutional separation of powers principles. The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers.”  Perhaps he had the prospect of a Bergdahl negotiation in mind . . . .

Eric Posner sums it up nicely:

A nice echo of the Bush administration, and a reminder that the imperial presidency is bipartisan.

Charlie Savage has more in NYT:

In this case, the secretary, Chuck Hagel, acknowledged in a statement that he did not notify Congress ahead of time. When Mr. Obama signed a bill containing the latest version of the transfer restrictions into law, he issued a signing statement claiming that he could lawfully override them under his executive powers.

“The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers,” he wrote in the signing statement, adding that if the restrictions “operate in a manner that violates constitutional separation of powers principles, my administration will implement them in a manner that avoids the constitutional conflict.”

An administration official said the circumstances of a fast-moving exchange deal made it appropriate to act outside the statutory framework for transfers.

The top Republicans on the House and Senate Armed Services Committees, Representative Howard McKeon of California and Senator James M. Inhofe of Oklahoma, said the release of the Taliban prisoners “clearly violated laws” governing the transfer of detainees from Guantánamo Bay. One senior administration official defended the decision, saying that “due to a near-term opportunity to save Sergeant Bergdahl’s life, we moved as quickly as possible,” requiring action outside the notice requirement of the statute.

We seem to be in Youngstown Zone 3, where the President is acting in direct defiance of the clear will of Congress. This does not, by itself, render the action per se unconstitutional. But we are not in a zone of twilight. If only President Truman issued a signing statement. The steel mill would have been his! Maybe this is Youngstown Zone 2.0.

Update 4: Susan Rice, an expert on rationalizing the administration’s actions on Sunday-morning programs, offered these sage comments:

Ms. Rice said the administration had felt compelled to move swiftly because Sergeant Bergdahl’s health seemed at risk and the opportunity to retrieve him possibly fleeting.

“We had reason to be concerned that this was an urgent and acute situation,” she said on ABC, adding that “had we waited and lost him, I don’t think anybody would have forgiven the United States government.”

Update 5: Secretary of Defense Chuck Hagel offers this explanation:

Q: Mr. Secretary, question one, Rep. McKeon said that you were — government was in violation of the law in not notifying 30 days in advance. Obviously you had the concern about leaks. But I wonder if you could talk a little bit about how and why you decided to notify Congress only the day of and not do the 30-day notification, and if you think you are indeed in violation of that law?

And more broadly, why do you think the Taliban was ready to talk about Bergdahl’s release now? Why did this negotiation restart?

SEC. HAGEL: Well, first, as to the first issue, we believe that the president of the United States is commander in chief, has the power and authority to make the decision that he did under Article II of the Constitution.

Now, that said, we believed that the information we had, the intelligence we had, was such that Sgt. Bergdahl’s safety and health were both in jeopardy, and in particularly his health deteriorating.

It was our judgment that if we could find an opening and move very quickly with that opening, that we needed to get him out of there, essentially to save his life.

I know President Obama feels very strongly about that. I do as well. He consulted with his National Security Council on this. We were unanimous that this was the responsible right thing to do.

As to why now, well, as I said, we have been — the United States government — working to find way to open up some possibilities with the Taliban to try to get Sgt. Bergdahl back, so this didn’t just start; this has been an ongoing effort that our government has been involved in at every level.

We found some openings that I don’t want to get deeply involved in, in sharing those with you, that made sense to us. We had the Amir of Qatar, who was willing to take the lead on this, and his representatives in Qatar. The timing was right. The pieces came together. Our consistent efforts that we had been making over the years paid off.

Long live the Unitary Executive.

Update 6: Tim Sandefur has a great analysis of why this action was unconstitutional.